House: Landowners need control on flooded lands

PIERRE — The state House of Representatives waded into a dispute more than a decade old Wednesday about whether the public should be able to use the water above private land that is flooded.

House members voted 37-32 to give landowners some authority to post some waters as no-trespassing.

The legislation’s prime sponsor, Rep. Charlie Hoffman, R-Eureka, said he doesn’t know of anyone looking to close waters above their land that have been used by the public for at least 21 years.

He said this is an attempt to bring the matter to a peak.

“You pass this bill. I guarantee you, everybody is going to be at that table,” Hoffman said. On the other hand, he warned about the highly contentious issue, “Somebody’s going to die if we don’t solve this.”

An amendment was added make “crystal clear” that recreational use of a river, navigable stream or meandered lake wouldn’t be affected.

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Rep. Mary Duvall, R-Pierre, said it clarifies Black Hills streams wouldn’t be closed and that established lakes would remain fully open if they expand in size over private property.

House Bill 1135 now heads to the Senate. The bill is strongly opposed by the South Dakota Wildlife Federation and by the state Game, Fish and Parks Department.

Rep. Spencer Hawley, D-Brookings, agreed it was a contentious issue, but argued that the Hoffman plan isn’t the answer. Hawley is a strong proponent for the federation and served eight years on the state Game, Fish and Parks Commission.

“It’s not a black-and-white answer for anybody,” Hawley said. The problem that remains, he said, is that landowners shouldn’t be able to restrict access to all flooded private lands.

Hawley suggested that state agencies instead be directed to work with landowners and sportsmen to compile a list of specific bodies of water that would be open for recreation.

He said the Legislature could consider the list in 2014.

But Hoffman was able to squeak through with only one aye vote to spare.

He said the inherent dilemma is that land which sportsmen couldn’t cross on foot becomes open to public access if it’s covered by water or ice. He gave the example of a person out hunting for pheasants.

“Grass makes it private,” Hoffman said. “Ice makes it public.”

The vote split in interesting ways, such as twice as many women voting against as supporting it. There was strong support from rural members in general.